By: Derek Gilna, Prison Legal News: September, 2011

Two separate settlements totaling almost $60 million were approved between November 2010 and January 2011 for Cook County, Illinois jail prisoners who were strip searched before being released. Both settlements stemmed from federal court cases filed under 42 U.S.C. 1983, one in 2004 and the other in 2006.

In one of the suits, Young v. County of Cook, up to 150,000 former prisoners are eligible for settlements of up to $200 each if they were strip searched between February 12, 2002 and March 2009. Such strip searches occurred after prisoners were returned to the jail from court before they were released. According to attorney Thomas Morrissey, those prisoners would be strip searched in groups with detainees not ordered released, and finally leave the jail at night. “They should have been released from the jail without being searched,” he said, adding that the searches stopped in March 2009 after electronic scanning technology made them obsolete.

The January 2011 settlement in Young followed a prior settlement that involved up to 250,000 prisoners who had been strip searched between January 30, 2004 and March 19, 2009. In that case, Bullock v. Sheahan, former detainees who were subjected to humiliating mass strip searches while being verbally abused by guards were eligible for awards ranging from $500 to $1,000. Also eligible were prisoners charged with misdemeanors not involving drugs or weapons who were strip searched or subjected to visual body cavity searches when they were booked into the jail.

Some prisoners might be eligible for awards in both cases; Cook County has been hit with several other jail strip search suits in recent years, too. [See: P LN, March 2010, p.18].

The November 2010 settlement in Bullock followed a 2009 trial in which the jury found that Cook County Sheriff Michael F. Sheahan, and his successor, Tom Dart, had violated the constitutional rights of the class members. The county settled Bullock after the jury’s liability verdict but before damages were awarded; Young settled prior to trial. Cook County did not admit fault in either case. Bullock v. Sheahan settled for $55.3 million, while Young v. County of Cook settled for $4.2 million.

County Commissioner Larry Suffredin said he hoped this would bring an end to strip search lawsuits involving the jail. “Hopefully, this is the last time we do this,” he stated. See: Bullock v. Sheahan, U.S.D.C. (N.D. Ill.), Case No.

On January 5, 2011 , the en bane Ninth Circuit Court of Appeals reversed a district court’s dismissal of a prisoner’s lawsuit against the Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio.

Charles Edward Byrd, while a pretrial detainee in a minimum-security MCSO facility, sought relief for a crossgender strip search conducted while he and other prisoners were clad in their boxer shorts. Byrd alleged that there were sufficient male guards available to perform the search, which involved a female police cadet “grab[ing] [his] balls and [his] scrotum.”

Byrd alleged in his complaint that the method of the search violated his “right under the Fourth Amendment to be free from unreasonable searches, and [his] rights under the Fourteenth Amendment to equal protection under the laws and substantive due process protection to be free from punishment.”

Maricopa County Special Response Team officers, responding to several fights and a suspicion of contraband, had ordered a search of a 90-bed housing unit where Byrd was held. Once the prisoners were lined up, four to six at a time were told to remove all of their clothing except for their thin, pink boxer shorts. Cadets from the detention office training academy then searched the prisoners with training supervisors present.

The district court had previously granted judgment as a matter of law in favor of Sheriff Arpaio, finding the search was constitutionally valid. The court had also narrowed the issues to be presented to the jury as to whether the search methods constituted an unreasonable search, whether said acts deprived Byrd of due process of law, and whether the search “deprived [Byrd] of his right against unreasonable search by conducting a search not done for [an] identified security need.”

The Ninth Circuit noted in its en bane decision that “the district court’s formulation of these three issues completely eliminated the jury’s contemplation of whether the cross-gender search violated Byrd’s right under the Fourth Amendment to be free of unreasonable search.”

The Court of Appeals found that the MCSO’s contraband control policy distinguished between frisk searches of prisoners based on gender, as the policy stated “Female inmates will only be searched by female officers.” The Court also noted that the policy did not establish the reasonableness of the search under the circumstances Byrd experienced, where he was forced to remove his clothing for an aggressive frisk search to be conducted.

The appellate court then found that “no basis exists for concluding that the provisions of the Contraband Policy defeat Byrd’s equal protection claim.” The Court of Appeals also held that an equal protection claim based upon disparate treatment of male and female prisoners was viable, citing Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) [PLN, March 2003, p.24]. The Ninth Circuit did agree that a substantive due process claim could not be sustained absent a showing of intent to punish.

According to the appellate court, “Whether a search is reasonable under the Fourth Amendment requires a case-by-case ‘balancing of the need for the particular search against the invasion of personal rights that the search entails … ,'” citing Bell v. Wolfish , 441 U.S. 520 (1979).

The required factors that courts must consider include: 1) the scope of the particular intrusion, 2) the manner in which the search is conducted, 3) the justification for initiating the search and 4) the place where the search is conducted.